In CRWP-2139-2022-PUNJ HC- Once a minor conveys desire to stay with person who claims to be de facto guardian, there’s no presumption that the same would be in best interest of minor, holds P&H HC in protection petitions by minors filed through their live-in partners Justice Vinod S. Bhardwaj[28-03-2022]

Read Order: P……… Minor Through Vikram v. State Of Haryana And Others

Monika Rahar

New Delhi, April 1, 2022: While dealing with a batch of protection petitions by minors filed through their live-in-partners (major), the Punjab and Haryana High Court has held that the enunciation of the statutory framework in the nature of the Juvenile Justice (Care and Protection of Children) Act 2015 and Protection of Children from Sexual Offences Act (POCSO Act) do not run contrary to Article 21 of the Constitution of India.

The Bench of Justice Vinod S. Bhardwaj added that the Court cannot be oblivious to the duty cast upon it as a repository of the best interest of the minor and there can be no presumption that once a minor conveys his/her desire to stay with any person and that such person claims to be the next friend/de facto guardian, the same would actually and in reality be in furtherance of the best interest of the minor. 

Thus, Justice Bhardwaj termed these minor petitioners as “child(ren) in need of care and protection” and ordered Police protection for them while holding that determination of what would be in the best interest of the minor has to be done by the Court as per the procedure known to law. The Court also directed the aid of machinery set up for such children under the provisions of the JJ Act. 

In this batch of petitions, the Court encountered an issue related to striking a balance between the Constitutional right to life as enshrined under Article 21 and statutory obligation as cast under the JJ Act. The minors/ petitioners approached the Court through their “self-proclaimed next friends/ guardians”, after having abandoned their natural guardians. 

In one of the petitions, the Court was approached by a minor (aged 16 years and 5 months) through one Vikramaged 28 years, seeking a writ in the nature of Mandamus to protect her life and liberty as also that of her friend Vikram. The petitioner was in a live-in-relationship with the said Vikram and she was aggrieved by her parents’ decision to marry her off to an older boy without her consent. Thus, the petitioners invoked Article 21 of the Constitution of India to seek protection. 

The petitioners’ counsel submitted that solemnization of marriage is not a pre-requisite for seeking protection of life and liberty once such an apprehension exists, a person would be entitled to claim the protection of her rights guaranteed under Article 21 of the Constitution of India. It was also added that the said right cannot be confined or denied on the touchstone of the Hindu Marriage Act or the JJ Act. 

After considering the rival submissions, the Court opined that the law recognizes the guardians of the following types, namely, natural guardian; testamentary guardian; guardians appointed/declared by the Court; a person empowered to act as such by or under any enactment relating to any Court of Wards; an affinity (pre-1956 Hindu Law- guardian of a minor widow); and a de-facto guardian. Elaborating upon the law governing guardianship, the Court made reference to the relevant provisions of the Hindu Minority and Guardianship Act, 1956 [Sections 4, 6 and 13]; the Guardians and Wards Act 1890 (Sections 4, 7 and 8); the Indian Majority Act 1875 [Sections 2(a), 3]; the JJ Act [Section 2(14)(vii)(xii)]. 

After having undertaken a perusal of the relevant provisions in these laws, the Court opined that the persons through whom the present petitions were filed did not fall in any of the categories of the guardians recognized under the Hindu Minority and Guardianship Act 1956 or under the Guardian and Wards Act, 1890. Also, the Court added that due to the absence of a long-standing relationship between the minors concerned and their “self-proclaimed” guardians, the Court could not term them as de-facto guardians. 

The Court held in this respect, 

“Continuity of interest is an essential pre-requisite to be satisfied before a person can be deemed or be termed as a de-facto guardian.”

Next, addressing the inter-place of the framework of special statutes like the JJ Act and the POCSO Act with the Right to Life and Personal Liberty as enshrined under Article 21 of the Indian Constitution, the Court opined that the enunciation of the statutory framework in the nature of the JJ Act and the POCSO Act, do not run contrary to the provisions enshrined under Article 21 of the Constitution of India. The Court asserted that the protection of life and liberty guaranteed to a citizen necessarily ensures that the Court of law, when approached, would step into the shoes of a guardian of such a minor and take all such steps as are essential to protect the life and liberty of such a minor. 

“The said Acts are intended to ensure the advancement of Article 21”, opined Justice Bhardwaj. 

The Court went on to add that the Court of law, while issuing any directions to follow the procedure provided for under the JJ Act does so with an object to ensure the safety and protection of a minor, who the law does not recognise as having acquired the wisdom and knowledge to take best decisions for himself/herself and it cannot be deemed as violative of Article 21 of the Constitution of India on the ground that such a decision will not be in conformity with the interest which such a minor conceives to be in his/her best interest.

Reflecting on the duty of the Court towards these minor petitioners, the Court opined that the Court cannot be oblivious to the duty cast upon it as a repository of the best interest of the minor and there can be no presumption that once a minor conveys his/her desire to stay with any person and that such person claims to be the next friend/de facto guardian, the same would actually and in reality be in furtherance of the best interest of the minor.

The Court, thus, has to take upon itself the responsibility to ensure that the fundamental right of such a minor to claim the protection of his/her life and liberty is made available and also to ensure that in the said process, the protection of the statute is not violated. 

Thus, the Court issued a batch of directions. The SSP/SP of the respective districts were directed to depute a Child Welfare Police Officer to produce the minor/child before the Committee constituted under the JJ Act as the minors concerned fell under the category of children in need of care and protection as provided under section 2(14)(vii)(xii) of JJ Act. The respective Committees were directed to conduct a Section 36 (of JJ Act) inquiry and to pass an appropriate order under section 37 of the JJ Act. 

The Child Welfare Committee was directed to ensure proper arrangements for the safety and welfare of the children concerned. Also, during the pendency of the aforesaid inquiry, the Court directed the Welfare Committee to take appropriate interim decisions as regards placement of a child/custody of the child in need of care and protection.

Next, addressing the welfare concerns of the petitioners, the Court directed the concerned SSPs/SPs to take appropriate steps as warranted by law against the threat perception to the minor as well as to their next friends and to ensure that the respective petitioners were protected from any physical harm at the instance of the respondents in respective cases. Lastly, the Court directed the Child Welfare Committee to submit a compliance report before the Court.